the 85th District Court Brazos County, Texas Trial Court No.
Chief Justice Gray, Justice Davis, and Justice Neill
Gray Chief Justice.
Westmoreland appeals from a purportedly agreed final judgment
that awarded AIA Holdings, Inc., International Fidelity
Insurance Co., and Allegheny Casualty Company a judgment
against her for $350, 000. Westmoreland complains that the
agreed judgment should not have been signed by the trial
court when he did because she did not consent to it and there
were no pleadings on file to enforce the purportedly agreed
settlement agreement. Because we find no reversible error, we
affirm the judgment of the trial court.
September of 2016, during the pendency of this litigation,
the parties attended a mediation which resulted in a
"Memorandum of Agreement." Based on the mediation,
the attorneys for AIA Holdings, International Fidelity,
Allegheny Casualty, and Westmoreland entered into an
agreement entitled "IRREVOCABLE STIPULATION AND RULE 11
SETTLEMENT AGREEMENT" in October of 2016. In the
agreement, the parties "stipulate and irrevocably
agree" that Westmoreland would pay $350, 000 to the
insurance companies on or before March 15, 2018 and if the
amount was not paid by that date, an attached agreed judgment
would be presented to and rendered by the trial court for
that amount. That document was signed by Westmoreland's
trial counsel on her behalf. The trial court approved the
parties' agreement to delay further proceedings until
March of 2018.
did not comply with the agreement. On April 12, 2018, the
attorneys for the insurance companies submitted the agreed
final judgment to the trial court and the trial court signed
the final judgment on April 18, 2018. The agreed final
judgment had been signed by Westmoreland's attorney on
her behalf as well. Thirty days later, Westmoreland filed a
motion for new trial, alleging for the first time that she
had not consented to the order and asked that the final
judgment be set aside. Although Westmoreland requested a
hearing on her motion for new trial, it was not set for
hearing and was denied by operation of law.
complains that the trial court erred by denying her motion
for new trial because she did not consent to the judgment at
the time it was signed as evidenced in part by the lack of
her signature on the Rule 11 agreement and the agreed
judgment. The insurance companies contend that her
attorney's signature on the judgment was sufficient to
evidence her agreement and Westmoreland did not notify the
trial court that she had withdrawn her consent to the
judgment prior to the trial court signing the judgment.
a court will indulge every reasonable presumption to support
a settlement agreement made by a duly employed
attorney." Ebner v. First State Bank of
Smithville, 27 S.W.3d 287, 300 (Tex. App.-Austin 2000,
pet. denied); see also Breceda v. Whi, 187 S.W.3d
148, 152 (Tex. App.-El Paso 2006, no pet.) ("Generally,
within these roles, every reasonable presumption is to be
indulged in favor of the attorney duly employed.");
Behzadpour v. Bonton, No. 14-09-01014-CV, 2011
Tex.App. LEXIS 565, 2011 WL 304079, at *3 n.2 (Tex.
App.-Houston [14th Dist.] Jan. 27, 2011, no pet.) (mem. op.)
("An attorney retained for litigation is presumed to
possess actual authority to enter into a settlement on behalf
of a client."). However, this presumption may be
rebutted by "affirmative proof that the client did not
authorize his attorney to enter into the settlement."
City of Roanoke v. Town of Westlake, 111 S.W.3d 617,
629 (Tex. App.-Fort Worth 2003, pet. denied).
it is well settled that an agreed judgment cannot be rendered
when one party does not consent at the time judgment actually
is rendered even if that party previously may have consented
to the agreement. See, e.g., Chisholm v. Chisholm,
209 S.W.3d 96, 98 (Tex. 2006); Burnaman v. Heaton,
150 Tex. 333, 240 S.W.2d 288, 291 (Tex. 1951). A party may
revoke his consent to settle a case any time before the
judgment is rendered. Quintero v. Jim Walter Homes,
Inc., 654 S.W.2d 442, 444 (Tex. 1983). However, a
party's revocation of consent must, in some way, be made
known to the trial court. Miller v. Miller, 721
S.W.2d 842, 844 (Tex. 1986).
record before us, including the motion for new trial,
establishes that the trial court was not informed of the
alleged withdrawal of Westmoreland's consent to the
settlement or the agreed judgment prior to the signing of the
agreed judgment. Because the trial court did not have notice
that Westmoreland's attorney was not authorized to agree
to the settlement on Westmoreland's behalf or that
Westmoreland had withdrawn her consent to the judgment at the
time it was signed by the trial court in 2018, the trial
court did not err when it signed the judgment in this
proceeding. We overrule
found no reversible error, we affirm the judgment ...